[Cite as Wallace v. Ferguson,
2013-Ohio-2437.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LOIS W. WALLACE : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
CRAIG & LISA FERGUSON : Case No. 12-CA-105
:
Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 12CV100540
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 4, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
LOIS W. WALLACE, PRO SE MICHAEL O'REILLY
13831 Carlstead Drive 30 Hill Road South
Pickerington, OH 43147 Pickerington, OH 43147
Fairfield County, Case No. 12-CA-105 2
Farmer, J.
{¶1} On February 13, 2012, appellant, Lois Wallace, filed a complaint against
appellees, Craig and Lesa Ferguson, for damages to her property caused by felled
trees by persons hired by appellees.
{¶2} A hearing before a magistrate commenced on March 28, 2012. By
decision filed June 1, 2012, the magistrate ruled in favor of appellees, finding appellant
failed to establish her damages. Appellant filed objections. By journal entry filed
September 19, 2012, the trial court denied the objections and approved and adopted
the magistrate's decision.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THE
PLAINTIFF-APPELLANT'S ESTIMATES OF DAMAGES WERE INADMISSIBLE,
THEREFORE FAILING TO PROVE HER DAMAGES."
II
{¶5} "THE TRIAL COURT'S FINDING THAT THE PLAINTIFF-APPELLANT
FAILED TO PROVE BY A PREPONDERANCE OF THE EVIDENCE, THE DAMAGES
TO HER PROPERTY AND THE CAUSE OF THESE DAMAGES, IS AGAINST THE
WEIGHT OF THE EVIDENCE."
III
{¶6} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED
THE MAGISTRATE TO PRESIDE OVER THIS CASE. THE SAME MAGISTRATE HAD
Fairfield County, Case No. 12-CA-105 3
RULED ON AN EARLIER CASE THAT WAS CURRENTLY UNDER APPEAL IN THE
5TH DISTRICT COURT OF APPEALS."
I
{¶7} Appellant claims the trial court erred in finding her exhibits on estimates of
damages were inadmissible. We agree.
{¶8} Generally, rulings on admissibility are reviewed under an abuse of
discretion standard. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an abuse
of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore,
5 Ohio St.3d 217 (1983).
{¶9} The magistrate and the trial court appear to have completely disregarded
Evid.R. 101(C)(8) which states the rules of evidence do not apply to proceedings in
small claims court. Rule 4.0 of the Small Claims Division of Fairfield County Municipal
Court states the following:
You must have all of your evidence at the hearing of your
case. Under no circumstances will any new evidence be accepted
after conclusion of the hearing. Although you may prepare and present
your case in any manner you see fit, you must have evidence to support
your claim. Evidence includes your testimony, the testimony of witnesses,
written agreements, receipts, public records, tangible items, photographs,
etc. A written statement from a witness is not admissible as
evidence. You may issue subpoenas, if necessary, to command the
Fairfield County, Case No. 12-CA-105 4
attendance of witnesses, and also for any documents you may need to
substantiate your claim. Listed below are several examples of the types of
cases commonly heard in the Small Claims Division, and the evidence
that is suggested:
…
DAMAGE TO REAL PROPERTY
Two copies of two estimates of repair, or repair bill.
Photographs/video recording of the damage.
Witnesses who viewed the incident.
{¶10} The magistrate's decision filed June 1, 2012 demonstrates a disregard for
the exception to the Rules of Evidence:
2.***The issue in the within cause is reasonable cost. None of the
companies providing estimates had representatives testify at the hearing.
Plaintiff is well aware of the procedures for filing subpoenas, since she has
requested subpoenas both in this case and in previous actions against the
Defendants. Based on the evidence presented, including pictures, it
would appear that Plaintiff is attempting to collect from Defendants much
more than the actual damages caused by Defendants' agents. In the
instant case, testimony from the companies providing estimates of
damages was crucial.
Fairfield County, Case No. 12-CA-105 5
3. Plaintiff received $691.12 from her insurance company leaving a
demand of $948.19 which includes attorney's fees.
4. Plaintiff has the burden of proving damages and in the instant
case, has failed to do so. The Court cannot speculate.
{¶11} Appellees were well aware of the amount in question because a complete
packet of the proposed estimates to repair the damage was filed along with the
complaint on February 13, 2012.
{¶12} Upon review, we find the trial court erred in excluding appellant's exhibits
on the issue of damages.
{¶13} Assignment of Error I is granted and the matter is remanded for
reconsideration.
II
{¶14} Based upon our decision in Assignment of Error I, this assignment is
moot.
III
{¶15} Appellant claims the magistrate should have recused himself. In
reviewing the docket, we do not find a motion for recusal or an affidavit of prejudice filed
by appellant.
{¶16} Assignment of Error III is denied.
Fairfield County, Case No. 12-CA-105 6
{¶17} The judgment of the Municipal Court of Fairfield County, Ohio is hereby
reversed, and the matter is remanded to said court for reconsideration.
By Farmer, J.
Gwin, P.J. and
Hoffman, J. concur.
_s/ Sheila G. Farmer________________
s/ W. Scott Gwin____________________
s/ William B. Hoffman________________
JUDGES
SGF/sg 521
[Cite as Wallace v. Ferguson, 2013-Ohio-2437.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LOIS W. WALLACE :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
CRAIG & LISA FERGUSON :
:
Defendants-Appellees : CASE NO. 12-CA-105
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Municipal Court of Fairfield County, Ohio is reversed, and the matter is
remanded to said court for reconsideration. Costs to appellees.
_s/ Sheila G. Farmer________________
s/ W. Scott Gwin____________________
s/ William B. Hoffman________________
JUDGES
